Dear Major General Marchenko,
Once again, we thank you and your colleagues for meeting with us in Kyiv on December 14, 2010 to discuss the findings of our recent report on the treatment of migrants and asylum seekers in Ukraine. We are also grateful for your willingness to meet with us on two other occasions in June 2010. We are appreciative of the cooperation that the State Border Guard Service has demonstrated at all stages of our research in Ukraine.
We are writing to bring to your attention our concerns with respect to a group of 14 asylum seekers and migrants from Afghanistan, who were in the custody of the State Border Guard Service from March 13 to 24, after having been transported to Boryspil' airport on March 13 for the purpose of deportation to Afghanistan. We also would like to reiterate our concerns about the treatment of migrants at the Boryspil' airport.
We understand that 10 members of the group were deported to Afghanistan before March 18, when the European Court of Human Rights instructed that the deportation of the four persons who remained in detention at that time should be suspended until at least April 1 as an interim measure under Rule 39 of its Rules of Court.
We also understand that shortly before deportation proceedings were initiated, at least 10 members of the group applied for asylum in Ukraine. The Regional Migration Service rejected their claims as manifestly unfounded under Article 12 of the law of Ukraine "On Refugees." Because of the difficulty nongovernmental organizations and UNHCR encountered in securing access to the detainees, it is difficult to determine whether all members of the group had applied for asylum and whether they were deported before having an opportunity to appeal the rejection. Since March 18, the four asylum seekers who remained in detention have appealed their asylum rejections to the State Committee on Nationalities and Religions.
In relation to the above, we would like to raise the following concerns with you:
Access to detainees
In our report (on pages 93 and 94) we described difficulties that local NGOs regularly face when trying to negotiate access to detainees held at Boryspil' airport. The Ombudsman's office, the Kyiv office of UNHCR, and a UNHCR NGO implementing partner in Ukraine told us that they experienced great difficulties while negotiating access to the holding center at the Boryspil' airport on March 13 and on the following days. We've been told that, when access was finally granted by the State Border Guard Service on March 15, some of the detainees had already been deported to Afghanistan.
We understand that as a result of their almost complete isolation, the majority of the group did not receive adequate legal representation or otherwise received no assistance with appealing rejections of their asylum claims. Instead, one by one, they were swiftly returned to Afghanistan in the course of the next few days-even though they all openly expressed fear of persecution if returned to Afghanistan. It was not until the European Court of Human Rights issued its interim measure, that a a stop was put to further deportations.
We have also learned that members of the group were not provided with interpreters while submitting their asylum applications or during deportation proceedings. Some of them were asked to sign papers which they could not understand.
While we recognize that refugee status determinations are not the province of the State Border Guard Service, we would nevertheless respectfully draw to your attention UNHCR's Guidance on Eligibility Guidelines for Assessing the Protection Needs of Afghan Asylum-Seekers of 17 December 2010 (HCR/EG/AFG/10/04) which state that "all claims lodged by asylum-seekers...need to be considered on their merits." In other words, such claims should not be rejected as manifestly unfounded without a full examination of the individual claims.
Allegations of mistreatment
We have interviewed some of the Afghans who were held at the Boryspil' airport at some point between March 13 and 24 and we have received allegations that officials of the State Border Guard Service mistreated at least some of the group while in SBGS custody at the Boryspil' airport. Allegations of abuse included border guards keeping detainees handcuffed with their arms twisted behind their backs for more than a day at a time and taking detainees one by one to a separate room every day, where three to four border guards punched and kicked them and abused them verbally.
Detainees complained about having to sleep on the bare floor without blankets or mattresses, not having regular access to toilet, not being given sufficient food and water, and not being provided with urgent medical attention in a timely manner after they sustained self-inflicted injuries that caused bleeding.
During our December meeting, we shared with you our findings on violations that migrants and asylum seekers face in Ukraine, including while being held in the custody of the State Border Guard Service, and that the worst of these abuses occur in the Specially Equipped Premises. We made a number of recommendations in our report which we feel appropriate to reiterate here. Given the gravity of the violations described above, we urge you to take immediate steps to:
- conduct a full, thorough and impartial investigation of allegations of abuse of the group of migrants while they were in the SBGS' custody, including during their transfer to Boryspil' airport and initiate appropriate criminal or disciplinary actions against perpetrators of abuse;
- ensure that all detainees in SBGS custody are treated in a humane and dignified manner and ensure that detainees are not pressured or encouraged to sign papers they don't understand;
- ensure that all detainees who are SBGS custody, including those held at Boryspil airport, have full access at all times to lawyers, UNHCR and NGOs and that detainees have access to asylum procedure and legal remedies to appeal negative decisions.
We thank you for your attention to this matter, which we will continue to closely monitor. We look forward to your response and to our continued and productive dialogue.
Refugee Program Director